Matheus v The State

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CASE NO.: SA 11/2001

IN THE SUPREME COURT OF NAMIBIA

In the matter be tween

THE STATE APPELLANT

And

GABRIEL MATHEUS RESPONDENT

CORAM:, Strydom, C.J., O'Linn, A.J.A., Chomba, A.J.A.

HEARD ON: 03/ 04/ 2002

DELIVERED ON:

_____________________________________________________________________________

APPEAL JUDGMENT

_____________________________________________________________________________

O'LINN, A.J.A.:

SECTION A:

INTRODUCTORY REMARKS

The respo nde nt, one Ga briel Matheus, ap pe ared in the C ourt a quo be fore

Engelbrecht, A.J., on a charge of Murder in that he allegedly, “on or about the

16th June 1996 and at or near Oshikundu Village in the district of Eenhana, the

ac c used unlawfully and intentiona lly killed Nghideng wa Twyoleni a ma le p erson” .

The summa ry of substantial fac ts at tac hed to the indictm ent in ac c ordanc e w ith

sec tion 144(3)(a) o f the Crimina l Proc ed ure Ac t 51 of 1977, rea d as follow s:

“On the 16th June 1996 the deceased beat up the mother of the

ac c used in a villag e near Ondang wa . The ac c used followed a nd



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grab bed the dec eased . He asked him why he had bea ten his

mother. He then bea t the dec eased twice with a fence pole

we ighing 1,51 kilog rams and the dec ea sed fe ll to the g round . After

that the accused took the knife of the deceased but was deterred

from assaulting the deceased further by people who held his arms.

The d ec ea sed d id not d ie at the scene , but wa s ta ken closer to his

home where he d ied minutes la ter. The d ec ea sed wa s 80 yea rs old a t

the time o f the incident.”

The ac cused wa s defended a t the tria l by a leg a l p rac titione r, Mr. Kauta , on the

instructions of the Leg a l Aid Direc to ra te . The Sta te was represented by Ms.

Sc hnecker.

The a c c used plead ed “ Not Guilty” but ma de the following tw o ad missions in

ac c ordanc e w ith sec tion 220 of the Criminal Proc ed ure Ac t:

“He beat the accused twice and the exhibit before Court is the

instrument used.”

The Sta te c a lled three witnesses, one Na dha la Kayoo, the a lleg ed wife of the

dec ea sed , one Junius Hangula, the b rothe r of the acc used , and Dr. Shangula, a

medical practitioner, who conducted the post mortem examination on the body

of the dec eased.

The a c c used wa s the o nly witness who testified for the de fenc e. At the conc lusion

of the trial, the a cc used wa s found “ Not Guilty” and disc harged . The Sta te g ave



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notic e of a pp lica tion for leave to a pp eal ag ainst the “ ac quittal” o f the ac c used

and listed the follow ing g round s of app ea l:

“ The Honourab le Judg e misd irec ted herself by no t finding:

2.1 That the ac c used be at the d ec ea sed the first time on the hand

in order to d isarm him o f his knife.

2.2 That the d ec ea sed , after the first b low , wa s d isarmed a nd tha t

no situation existed after that against which the accused had

to d efend himself.

2.3 That the sec ond and third blows were g iven b y the a c c used on

the upper body of the dec eased a fter the dec eased w as

disarmed.

2.4 That no d ang er or threa t existed afte r the d ec ea sed wa s

disarmed and that the sec ond and third blows or both, c aused

the dea th of the dec eased.

2.5 That either the sec ond or third b low s or both, c aused the d ea th

of the dec eased .

2.6 On the acceptance of the facts set out in the preceding

pa rag rap h the respond ent had c ommitted the crime of Murder

and should have b een c onvic ted on that c harge.”



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On 31st August 2000 leave to appeal was granted to appeal to the full bench of

the High Court. As a result of new leg isla tion enac ted before hea ring o f the

appea l by the High Co urt, this appea l c ame b efo re this Court for dec ision. Ms.

Harmse appeared before us to argue the appeal and Mr. Kauta for the

respondent, amicus c uriae.

I find it convenient to refer hereinafter to the parties for the purposes of this

judgm ent, a s in the Court a quo.

SECTION B:

THE MAIN ISSUE:

It wa s common cause tha t the a cc used inflic ted two – three b lows on the b od y of

the deceased with a relatively sturdy and heavy piece of log described as a

“ fence po le” . One or more of these blows caused a frac ture of the dec ea sed ’s

breastbo ne which c aused severe pa in lea ding to ac ute c ardiac arrest.

The State thus proved be yond reasonable do ubt that the ac c used had c aused

the dea th of the dec eased.

The defenc e raised by a nd on behalf of the ac c used wa s “ self-defenc e” and this

wa s the ma in leg a l and fa c tua l issue b etw een the p arties.

SECTION C:

THE FURTHER FAC TS WHICH WERE EITHER COMMON CAUSE OR NOT SERIOUSLY

DISPUTED



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1. The d ec ea sed wa s an e lderly person whose ha ir and b ea rd w ere grey and

who se age wa s estimated a t the post-mortem a s ± 80 yea rs. He had a

normal built for his age and his estimated weight was approximately 60

kilograms. He wa s apparent ly rela tively strong fo r his age. The ac c used on

the other hand was a young man whose physical characteristics was

unfortunate ly not enq uired into o r p lac ed on record b y either the Sta te, the

Defence or the Court, even though it were very relevant in view of the

ma in issue o f “ self de fenc e” .

2. Apart from the fracture of the breastbone, signs of bleeding from the

mouth and a n “ old c losed frac ture” of the left forearm, there we re no othe r

frac tures, wounds or bruises d isc ernab le. This me ant tha t there was a lso no

indication whatever of a blow with the “fence pole” on the arms, hands,

wrists or fingers of the dec ea sed .

3. Prior to the incident when the deceased was killed, the deceased had

assaulted the mother of the accused and of his younger brother Junius

Hangula.

4. The mo ther’s nam e was neve r plac ed on rec ord and no p articulars we re

given, exce pt tha t Junius Hangula sta ted , when he testified , that his mo ther

still has a hip injury, caused by the injuries she sustained when the

deceased assaulted her.

5. On the da y of the incident the a c c used and his younger brother Junius me t

their mo ther whe n they were wa lking a long a roa d . She wa s c rying and

told Junius and the accused that she had been assaulted by the



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dec ea sed . This rep ort appa rently trigg ered the ac cused ’ s further ac tion.

The ac c used w ent off in sea rc h of the dec ea sed . When the mother

not iced th is, she asked Junius where Ga briel had g one . Junius to ld his

mo the r tha t Gabriel wa s not the re. She then instructed Junius to fo llow

Ga briel. When he c aug ht up with Ga briel, the ac c used , he c alled him to

turn back but the ac cused ignored him and continued walking. He then

stopp ed the a c c used a ga in and told him to leave the ma tter and g o ba c k

home , but the ac c used pe rsisted .

When his evide nce w as put to the ac cused , he merely said that he d id not

know a bout th is, but there wa s no outright denia l from his side . The

ac c used how eve r ma de the follow ing conc ession: “ The only time he

stop pe d me from do ing anything is when I hit the ma n tha t’s when he to ld

me : ‘Lea ve the man a lone. Lets go hom e’ ” . The lea rned trial judg e ma de

no finding o n this issue, but found tha t a ll the witnesses, inc lud ing tha t o f the

Sta te a nd the a cc used were c red ible.

It follows from the above evidence however that both the mother of the

accused and his brother Junius, were concerned about the accused’s

intentions and tried to d issuade him but he p ersisted . The ac c used wa s

c learly not in a g ood mood .

Nadhala Kayoo, the widow of the deceased, according to her

uncontradicted testimony, was present when the accused’s mother was

be ate n b y the d ec ea sed and wa s also subseq uently present a t the sc ene

at least immed iately after the de c eased had be en be aten b y the ac c used

and wa s lying on the ground . Ac c ording to her, she wa s “ a little bit



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creeping away” because “after he had beaten the old man, he also

wa nted to bea t me” . She further testified that she could not say in what

mood the accused was, “because he came from the shebeen … he was

not happ y”.

Although the learned trial judge made no finding on the issue and

apparently wrongly ignored this testimony, the evidence shows that the

accused was in a stubborn and aggressive mood at all relevant times,

before and immediately after he had assaulted the deceased with the

stick.

6. When the accused followed the deceased, he had no weapon in his

hands.

7. Immediately after the accused had beaten the deceased, the accused

was found with a traditional knife in his one hand and the fence pole in his

other hand.

8. The a c c used a t no sta ge susta ined any injuries and no b low was struck at

him.

9. The force used to c ause the frac ture w ith the fenc e p ole wa s from

“ mod erate to e xc essive forc e” .

The frac tured breastbone how ever, wa s a thick bone c omp ared to other

bo nes in the bo dy a nd although other bones in the bod y co uld be brittle a s

a result of the d ec ea sed ’s old a ge , the breast b one w ould not a nd w as not

brittle.



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SECTION D:

RELEVANT FACTS IN DISPUTE

1. The ac c used ’s mo tive for follow ing the dec ea sed

The a c c used testified tha t his rea son fo r follow ing the d ec ea sed wa s tha t

his mother had told him to ask Nghidengwa, who had assaulted her, to

give her money so that she can go to hospital or alternatively, to take her

to hospita l. Junius howeve r, testified tha t he d id not know o f suc h a req uest

and as mentioned under B.3 supra , his mother instead wanted to know

where Gabriel had go ne and w hen he told her that G ab riel had go ne, she

req uested Junius to fo llow G abriel. When Junius c aught up w ith Ga briel, he

asked him to turn bac k, but to no ava il.

This undisputed evidenc e, ma kes it a t least improb able tha t the mo ther

had sent Ga briel to obta in money from Nghide ngwa to p ay for the hospital

or otherwise to ta ke her to ho spital himself. The ac c used ’s ev idenc e in this

regard was incomplete and unconvincing and in conflict with that of

Kayoo in regard to what he had said to Nghidengwa when he first

c onfronted him.

Neither Junius nor Kayoo knew of a “demand” or heard a demand being

ma de b y the ac cused to Nghideng wa . But what Kayoo heard wa s that

the ac c used asked: “ Why did you be at my mo ther” . Conside ring the

accused’s mood and aggressiveness and the evidence of Junius about

their mother’s worry about the whereabouts of the accused and Junius’s

efforts to persuade the accused to return and leave Nghidengwa alone,



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the Kayoo version is probab ly the true version o f wha t the ac c used sa id to

the dec eased .

The Court how ever, ac c ep ted the w hole ve rsion o f the ac c used , inc luding

his evidence on this point, notwithstanding the fact that the learned judge

a lso a c c ep ted the evide nc e o f the Sta te w itnesses as c red ib le. In do ing so,

the C ourt misd irec ted itself.

2. The issue o f the a lleg ed knobkierie a nd the a lleg ed “ running a wa y” of the

accused

The a c c used testified that when he first a cc osted Nghide ngwa, and ga ve

him his mo ther’ s me ssage, the la tte r took a knobkierie. He, the ac c used

then ran a wa y.

The ac c used ’s evidenc e abo ut the “ knob kierie” and the “ running a wa y”

wa s vag ue, c ontrad ic tory and diffic ult to comp rehend . Prior to the

ac c used ’s testimony when Junius testified tha t ac c used “ ran away” , the

running away story appeared to be a misunderstanding between witness

and interpreter and probably caused by the inability of the interpreter to

translate p rop erly, a lternat ively the inab ility of the witness to express himself

properly and the failure of counsel and the Court to clarify the issue

satisfac to rily. The relevant part of the evidenc e of Junius wa s:

“ We proc eed ed w e wa lked toge ther for a short distanc e. I then

stop pe d him again and to ld him to leave the ma tter. He should g o



10

ba c k home . Then the de c ea sed mad e a move ment. Then the

ac c used ran a wa y.”

Q: “ So, where wa s the de c ea sed then at that stag e?”

A: “ He wa s ahea d of us. He was in front of us.”

Q: “ You said then further the ac c used ran aw ay?”

A: “ Yes.”

Q: “ Where d id he run to?”

A: “ He run going in front…”

Q: Yes, wha t happen then?”

A: “ I then follow ed him. Run a fter him. I c annot c a tc h him

be cause I wa s c aught (indistinct). I then hea r the sound of a

stick. A stick tha t was used w hen he assaulting the

deceased.”

Q: “ What do you mea n you heard the sound of a stick. Could

you be more spe c ific?”

A: “ My Lady, I hea rd the sound of a stick. A stick tha t was used

when he assaulting the dec ea sed .”

Q: “ Did you see anything?

A: “ No, My Lady, I d id not see anything.”

Q: “ So, wha t hap pe ned after you hea rd the sound?”

A: “ I went there and met the ac c used… the de ce ased and the

wife … the d ec ea sed ’s wife.”

Q: “ What were they do ing?”

A: “ My Lad y, the ac cused had a knobkierie on his right hand

and on the left hand a homema de knife…”

Q: “ And what wa s the dec eased doing?”



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A: “ The dec ea sed wa s lying on the ground .”

It a pp ea rs therefore tha t a c c ording to this witness, when he said – “ he run

go ing in front” , he ma y have meant tha t the ac c used ran to ge t in front of

Nghidengwa to head him off, i.e. to prevent Nghidengwa from getting

away and in so doing actually ran away from Junius who until then, had

wa lked with the ac cused , and now followed behind the a c c used .

When the accused was asked by his counsel where he ran to, after

Nghideng wa too k the knobkierie, he sa id a c cording to the rec ord: “ I just

mo ved be hind (indistinct)” . The follow ing questions and answe rs then

ap pea r on the rec ord:

Q: “ Did you mo ve ba c kwards?”

A: “ No, … I didn’ t move ba c kwa rds.”

Q: “ What hap pened then after you ran aw ay?”

A: “ Then he kept c om ing, then I returned bac k (ind istinct).”

Court question: “ We kept wha t?”

A: “ We kept c alm and then I went ba c k to him ag ain.

Q: “ Who bec ame ca lm?”

A: “ The de c ea sed .”

Q: “ And then what happ ened when you returned ba c k to him,

Sir?”

A: “ And then he c am e and that’ s when he took out the knife.”

It must be noted here that the alleged knobkierie which according to the

accused, Nghidengwa took hold off or had with him, had suddenly



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disap pe ared. At any event it was never alleged b y the ac c used tha t

Nghidengwa had threatened him with the “knobkierie” and even the

accused did not allege that he hit Nghidengwa to deprive him of the

knobkierie as the learned judge found when she stated in her judgment:

“He was adamant that the only reason for his attack was to defend himself

and ge t rid o f the knife and knob kierie the d ec ea sed wa s holding when the

latte r ap proac hed him. (My empha sis ad de d.)

The Co urt misd irec ted itself in the lat te r reg ard . Instead o f find ing tha t the

accused’s allegation about the “knobkierie” did not fit into the rest of his

story, and was not supported by the evidence of any other witness who

was on the scene or who arrived on the scene immediately after the

assault.

This sto ry of the a cc used wa s, to say the least, ent irely unconvinc ing. The

Court wrongly assumed that the accused had said something which he

had never said a nd b y imp lic ation, (having ac c ep ted the a c cused ’s story)

found that the deceased was in fact “armed with both a knife and

knobkierie and intended to use at least the knife against the accused and

that the only rea son for the atta ck by the ac c used wa s “ to d efend himself

and get rid of the knife and knobkierie that deceased was holding when

the latte r ap proac hed him.”

The Court a lso d ea lt with the issue o f the initia l c onfronta tion and the c ross-

examination of Junius in this regard in an unsatisfactory manner which in

itself amo unts to a misd irec tion.



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The w itness Junius had testified tha t when c onfronted , Nghide ngw a ma de

a “ mo vem ent” . La ter, when Junius wa s further c onfronted b y c ounsel as

well as the presiding trial judge with what he had allegedly said, he insisted

repeatedly that he had not said that Nghidengwa had made a

“ moveme nt” but only that the dec eased “ had ma de a sound” . He

explained further that he meant the deceased made a sound “like he’s

shouting”.

At the stage and almost at the outset of the cross-examination by Mr.

Kauta for the defence, the cross-examination was interrupted by relieving

the interpreter from her duties because she was apparently ill and a new

interprete r swo rn in. As soo n as the hea ring resume d , the lea rned presiding

judge intervened by expressing her opinion that it seemed that Junius

“ d idn’ t ac tua lly see the a c tua l inc ident” and a sked: “ So, is there any use in

putting to him what happe ned?” Mr. Kauta for the acc used hap pily

c onc urred , and so stop ped his c ross-examination.

All this happ ened notw ithstand ing the fa c t tha t Junius had a lrea dy testified

that he was present when the accused Gabriel first caught up with

Nghidengw a a nd Nghideng wa ma de the “ sound” alread y referred to a nd

the ac c used “ ran away” . Junius wa s never asked whethe r or not he saw

Nghidengwa with a knobkierie or a knife at the stage when Nghidengwa

ma de the sound and the ac c used ran a wa y.

When the acc used la ter testified , he sa id tha t Junius wa s p resent whe n he

hit Nghideng wa ; tha t Junius wa s ab out three (3) – four (4) me ters awa y.

Junius was with the accused at least when the initial confrontation took



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place and this was a relevant part of the “actual incident” and was

wrongly ignored and not further investigated during cross-examination,

ma inly due to the intervention b y the tria l judge .

It follow s from the a bove tha t the Court a lso wrongly found tha t: “ When

the accused made his demands to deceased the latter took out his

knob kierie and the ac cused retreated ” . (My empha sis ad de d.)

To a c c ep t the a c c used ’s allegat ion on fa ce va lue without conside ring the

above evidenc e o f Junius and Kayoo, wa s misdirec tion by the Court.

3. The c ontinuat ion of the c onfronta tion

The Court held: “ When the ac c used ap proac hed dec ea sed ag ain,

de c ea sed took out a trad itiona l knife and ca me tow ards ac cused . (My

emp hasis ad de d .)

The q uestion arises and should ha ve b een considered a nd d ec ided by the

Court, why the accused “approached the deceased again, in view

thereof that according to the accused, he had already conveyed “the

message” to Nghidengwa and Nghidengwa had already reacted

agg ressively by ta king out his knobkierie, forc ing the ac c used to “ run

away”.

The further question which a rises is whether Nghidengwa in fac t a t any

stage “ c am e towa rds the a c cused ” as found b y the Court. It is true that in

this regard the evidenc e of the a c c used stands alone. But that evidenc e



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should not ha ve be en ac cep ted merely for that reason. It should ha ve

been analysed and judged in the context of the other factual allegations

which are in dispute and where in some cases the accused’s evidence is

unsatisfactory and where in another he has clearly lied and/or where his

version is against the probabilities.

The fo llow ing e videnc e in chief of the ac c used in this reg ard rea ds as

follows:

Q: “ What hap pened then after you ran aw ay?”

A: “ Then he kept c oming, then I returned back (ind istinct).

Q by Court: “ We kep t wha t?”

A: “ We kept c alm and then I went ba c k to him ag ain.”

Q: “ Who bec ame ca lm?”

A: The dec ea sed .”

Q: “ And then what hap pened when you returned ba c k to him,

Sir?”

A: “ And then he c am e and that’ s when he took out the knife.

And then I too k the stick and be at off the knife from him."

At best for the accused, the only basis in the accused’s evidence in chief

for finding that the d ec ea sed c am e tow ards the ac c used , was the wo rds –

“ and then he ca me and that’s when he took out the knife.”

The sc ena rio sketched wa s that when the a c cused moved towards the

de c ea sed , the dec ea sed in turn moved towa rds him.



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In cross-examination the accused, when asked what the deceased did

with the knife, sa id : “ He was wa lking tow ards me .”

In respo nse to the question – “ and then wha t did you do?” he rep lied :

“ And then I hit the knife off and then it fell do wn.” When a sked in evide nce

in chief where on his bo dy he hit the d ec ea sed , he had said: “ On the left

hand side o f his bod y ac ross the he art a rea on the ribs” . He a lso sta ted

that he hit the a c c used in the sam e a rea one m ore time – i.e. a to tal of two

blows.

In the first part of the cross-examination the accused persisted with this

version but later in the cross-examination he conceded that he inflicted

three blows and now insisted that the first blow, to dislodge the knife, was

aimed a t and inflic ted on the d ec eased’ s hand.

The lea rned trial judge c omplete ly igno red this evidenc e and found tha t:

“ In orde r to d efend himself the ac c used grab bed the fence-pole and be at

the d ec ea sed on the c hest in orde r to d isarm him.” (My emp hasis ad de d.)

This notwithstanding the fac t tha t the C ourt p urpo rted to a cc ep t the

version of the a c c used and the ac c used had bee n ad am ant in the latter

part of his cross-examination that he hit the deceased on the hand to

dislodge the knife.

The p ost-mortem examination b y the do c tor however, revea led no

fractures, bruises or wounds on any of the hands or fingers of the deceased

and only an old a nd joined frac ture on the right forearm. If a b low with the

heavy fence pole was in fact struck at the hands of Nghidengwa and



17

landed on the hands or arms so as to dislodge the knife, one would have

expec ted the d oc tor to have found a frac ture or bruise of the ha nd o r arm

during the post-mortem examination.

There was a lso no knife ha nded in a t the tria l and no questions asked why

not.

Nghidengwa had a knife and pulled it from his waist, it should have been

found a t or near the prostrate bo dy of Nghide ngwa .

The question a rises, if the acc used had the knife seen b y Junius in his hand

and if Nghidengwa had pulled this knife from his waist to attack the

accused and if the accused had managed to take this knife from the

deceased, then why was it not produced by him when the others arrived

on the sc ene, to show tha t the dec ea sed a ttacked him with the knife. On

the other hand, if he had thrown it awa y, why would he have do ne so?

Unfortuna te ly, neither the a cc used ’ s c ounsel, nor Sta te c ounsel nor the

learned presiding judge asked the accused what happened to the knife

which ac c ording to him had fallen on the ground. One would have

thought that it w as elementa ry to attemp t to establish, in a c ase w here the

defence of self-defence is the crucial issue, what the fate of the allege

knife wa s. The nea rest that the Sta te advo c ate c ame to such an enquiry

wa s to p ut it to the ac c used that the pe op le a rriving a t the scene said tha t

the d ec ea sed “ wa s alrea dy lying a nd you were stand ing w ith t he stic k and

the knife” . The ac c used a nswered : “ I do n’t know whethe r they found him



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on the floor or the ground” . The ac c used did not respo nd to that p art of

the sta tem ent relating to the stick and the knife in his hand.

Neither Sta te c ounsel nor defenc e c ounsel put to him the evidenc e o f

Junius to the effect that when he arrived, the accused was standing with

the trad itional knife in his one hand and the stick in the o ther. Neither of

them put to him the evidence of Kayoo that he removed, what she

believed to be the d ec ea sed ’s trad itional knife, and threw it into the b ush a

few me ters aw ay. State c ounsel did not c all any policeman to explain

whether a knife, alleg ed ly used by the de c ea sed , was ever mentioned by

the ac c used during the investiga tion; whethe r the sc ene of c rime w as

searched and whether or not a knife was found or if found, what had

happe ned to i t.

The a c c used ’s story is tha t he left the sc ene even a fter he ha d struc k the

dec ea sed and while the latte r wa s till stand ing. He d id no t explain how he

then c ame in possession of the trad itional knife. If the dec ea sed had

threatened the accused with a traditional knife it would have been the

obvious thing for him to testify that he in fact picked up the knife from the

ground a fter dislod ging it from the a cc used ’s grip o r tha t he took it from the

body or the prostrate body of the deceased after the latter had fallen to

the g round . But instea d o f that he says tha t he left w ith his b rothe r

immediately after hitting the deceased and left when the deceased was

still stand ing. This evidenc e left no p lac e for the stage when the a c cused

stood a t the sc ene w ith a knife in one hand and the fenc e p ole in the other

and the de c ea sed prostrate on the ground.



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The fa c t tha t the ac cused for a substa ntial part o f his testimo ny failed to

testify how he hit Nghide ngw a on the hand to d islod ge the knife, is a further

indication that the claim that Nghidengwa had a knife in his hand and

wanted to stab the accused and even lifted his hand in a stabbing

po sition, was a fab ric ation b y the d efenc e.

This inference is further streng thene d by the ac c used ’s vague evidence in

re-examination when he then for the first time demonstrated how the

accused allegedly, not only took the knife from his hip, but lifted it high up

tow ards his shoulder and sta bbe d a t the ac c used .

In this part of the re-examination, the accused inter alia sa id : “ I d id not

rea lly rec og nize the knife b ec ause it wa s dark” …” I only saw him g oing into

his waist and when he did this, its when I thought to myself that he had a

knife…” In re-examina tion by Sta te c ounsel he sa id: “ Loo king a t it I thoug ht

it wa s a knife. Looking a t it I c onc luded tha t it wa s a knife.”

In re-examination by his own counsel it was recorded that he gave the

follow ing demonstra tion. “ The ac c used indica tes a mo vem ent from the hip

or waist upwards to the shoulder and then with the fist a stabbing

mo vem ent” . (My em phasis added .) The question imm ed ia tely a rises why

this sto ry wa s only told in re-examina tion. If Nghideng wa even we nt so fa r

as to stab at the accused, he would certainly, with the help of his counsel,

have bee n ab le to say that in his examination in c hief. This was c learly an

afte rthought a nd a lie.



20

Again the learned trial judge never mentioned this part of the accused’s

defence, which, if she gave it any consideration, should have led her to

d ifferent c onc lusions in rega rd to the c red ibility of the a c c used . This fa ilure

by the tria l Court amo unted to a further misd irec tion.

The only explana tion of what p rob ab ly happe ned to the knife wa s

contained in the testimony of the wife of the deceased, Nadhala Kayoo.

She said that she also followe d Nghide ngwa a fter he had be ate n the

mo ther of the ac c used and Junius. Ac c ording to the rec ord, the ac c used

sa id : “ Sir, don’ t follow us.” The wo rds “ don’ t fool us” then a ppe ars on the

rec ord a nd were p rob ab ly meant in substitution o f the wo rds – “ don’ t follow

us.” Alternat ively, the words – “ Sir – don’ t follow us” , ma y have b een

intende d a s the words spo ken by Nghide ngwa. Whatever the correc t

position this important evidence was not cleared up by counsel or the

Court.

The follow ing q uestions and answe rs follow ed :

Q: “ Yes, wha t hap pe ned then?”

A: “ And then I just hea rd the po p sound and that’ s when I

followed to the sc ene and what had hap pened .”

Q: “ What pop sound are you referring to?”

A: “ It’ s a stic k that moved . That had be ate n the de c ea sed .”

Q: “ Did you see the be ating?”

A: “ No – I d id not see it.”

Q: “ And what happ ened then afterwa rds?”



21

A: “ And then I found the de c ea sed next to (indistinc t). When I

c am e to the sc ene a rea then the dec eased wa s be ing held

in his waist by the accused.”

Q: “ In wha t position wa s the dec ea sed ? Was he stand ing up

straight or lying o r sitting?”

A: “ He wa s injured , he wa s lying on his bac k.”

Q: “ And what wa s the ac c used doing?”

A: “ When I c ame there I just found the dec ea sed in the a rms of

the accused and then his younger brother was saying:

“ Plea se leave the man alone. …”

Q: “ And when you got onto the sc ene and you saw your

husband lying on his back in the arms of the accused – did

you see the knife?”

A: “ The ac c used was holding som ething in his hand but I d id not

see w ha t it wa s … I d id not find him with anyth ing else. Or I

d id no t see him with anything else …”

On further questioning about the knife, the witness said that when she

arrived on the sc ene she saw the a c cused pulling som ething from the w aist

of the a c c used . On q uestions by the Court she sa id tha t when she saw the

accused holding the deceased in his waist, she saw him throwing

som ething into the bush. She continued : “ And then the kid sa id , the boy

sitting over there said : “ Stop it, lea ve the man alone and c om e ove r here.”

She exp la ined tha t it was the b rothe r of the ac c used who sa id so.



22

It must be remembered that the said brother Junius had also testified that

when he a rrived on the sc ene, the a c c used had the fenc e p ole in his one

hand and a traditional knife in his other hand and the deceased was lying

on the g round . The wife of the dec ea sed , the w itness Kayoo, wa s then

alrea dy on the sc ene.

Aga inst this testimony b y Junius and Kayoo, the a c cused testified tha t a fter

he ha d hit the d ec ea sed , his brothe r Junius told him to lea ve the dec ea sed

alone and they left. At the time, ac c ording to the acc used , the dec ea sed

was still standing and in fact never fell down after he was struck by the

ac cused during the t ime that the ac c used wa s still on the sc ene.

It must have been obvious that the accused’s version that the deceased

did not fall down while he was on the scene was not only in clear conflict

with the testimony o f Junius and Kayoo, b ut a b la ta nt lie.

The tria l judge in her judg me nt ap parently did not c onsider these d efec ts

and inc onsistenc ies and even the lat ter obvious lie. Although finding a ll the

witnesses c red ible, she a c c ep ted as she said “ the ac c used ’s version” , even

though it was inconsistent with testimony of the other witnesses, whom she

a lso found c red ible. This wa s c learly another misd irec tion.

4. The q uestion whe ther or not the b low s struc k by the ac c used we re inflic ted

in the hea t of the mome nt and in quick succ ession:



23

The Court found tha t the b low s struc k were inflic ted in the he at of the

moment and in quick succession and were consequently not exceeding

the b ound s of self-defenc e in the c irc umstanc es.

The first misd irec tion which the C ourt c om mitte d in this reg ard is tha t a s the

evidenc e evolved , the ac c used had c once ded that he had inflicte d three

(3) b lows, not tw o (2).

As to the “heat of the moment”, I have already referred to the accused’s

own evidence supra , that there was the initial confrontation when he

c onveyed h is mother’ s me ssage, then follow ed the sto ry of his “ running

aw ay” , the allega tion that the dec eased then bec am e c alm and the

allegation that the ac c used then returned to Nghideng wa .

Furthermore when the accused returned, according to his own testimony,

Nghidengwa no longer had the alleged knobkierie and the only alleged

wea po n now ava ilab le to Nghide ngwa was the knife. But the knife was

knoc ked out of the ha nd o f Nghide ngwa with the ac c used ’ s first flow and

he saw it fall onto the ground . If the ac c used c ould ob serve this, and he

ob viously had to lift the hea vy fence po le the sec ond and third time , then

he was not acting as an automat, who could not control himself if he

wished to d o so.

It is noteworthy that when the accused was asked repeatedly why he hit

Nghide ngwa the sec ond and third time when he no longe r had a knife he

ga ve the follow ing answer: “ I had found him with a knife.”



24

The “ quick suc c ession” sto ry wa s a lso o nly voice d in response to lea ding

questions to the ac c used b y the Court. Up to tha t stag e the ac c used ,

when asked why he had bea ten the ac c used , only mana ged to say that

he bea t Nghidengwa in self-defenc e, be c ause Nghidengw a had ta ken out

a knife whenever asked why he inflicted two further blows after the knife

had be en knoc ked from the ha nd of Nghidengw a. The Court’s question

which e lic ited this sto ry during the c ross-examination b y Sta te counsel

followed after two immediately preceding, but futile efforts, by the Court.

The q uestion a nd answe r we re p hrased as follow s:

Q: “ I have one more question. Mr. Ma theus, how long in time-

span how long did it take from the first to the second blow?

Were it two blows in quick succession or did you hit him the

first time a nd w a it for a long time and hit him a ga in?”

A: “ Okay, after I hit off the knife or a fter I hit him on the hands to

let g o o f the knife then I gave him a sec ond blow a ga in.”

Q: Yes, the question is how long betwe en these two blows?”

A: “ No time. There has not be en any time differenc e be tween.”

It must be noted that the choice the Court gave him was between – “two

b low s in quic k succ ession” and “ d id you hit him the first time a nd wa it for a

long time. (My emp hasis.) There was no third c hoic e allow ed suc h as e.g .

or “d id a short time elap se b etween the two blows?” Be tha t as it ma y –

the answer did not explain why Nghidengwa was beaten a third time.

When the Sta te c ounsel put tha t question the a c c used sa id tha t there a lso

elapsed “ no time ” be twee n the sec ond and third b lows. But when asked



25

why he hit the deceased a third time he failed to answer and his silence

wa s noted on the rec ord.

The a c c used neve r sa id tha t he w as not in control of his ac tions and neither

he nor his c ounsel plead ed auto ma tism. If the Court had a d efenc e of

automatism in mind, it should have held that such a defence was not

ra ised . Alternat ive ly, tha t if ra ised it had to fa il.

To inflic t a number of b lows in quick suc cession, when a person is in co ntrol

of his ac tions, c an never amo unt to autom atism. There was no evide nce to

the effect that the accused had lost control of his functions at any stage

and that he was unable to stop the assault at any stage when he

pe rc eived that the d ang er, if any, had c ea sed .

It is unfortunate that the handling of these issues by counsel and the Court

wa s inep t a nd unsa tisfac tory.

Whether the fenc e p ole used by the ac c used broke in two a s a result of the

power with which the accused struck the deceased was never properly

examined b y co unsel and the C ourt. Two piec es of wo od were presented

to Court and it wa s de sc ribed by the Court as follows: “ It is about one

metre in leng th. Then the re is a sma ller little piec e tha t may or may no t b e

an off-c ut o f the first one w hic h seem s to be ano ther about 30 centimet res

in leng th and the width is prob ably about five c entimet res” . (My emp hasis

added .) The Court further rem arked : “ …It loo ks quite heavy… It’ s a sturdy

piece of log” .



26

No effort was apparently made by Court and counsel to try and see

whether the two p iec es ap pea r to b e p art of a p ole which broke in two a s

a result of the blow, rather than being an “off-cut” whatever that may

mean. The ac c used wa s not a sked b y co unsel for the Sta te o r the Co urt

whether or not the pole broke in two when he hit the deceased and if so,

whe ther it broke at the first, sec ond or third b low . No effort was ma de to

esta blish whe re the two p iec es or stick we re fo und.

Simila rly c ounsel for the Sta te d id no t in cross-examination o f the ac c used

ask him to demonstrate how the blows, allegedly struck in quick succession,

were in fact struck – i.e. how he held the stick – with one or both hands –

how high he lifted the stick in order to strike etc . The lea rned presiding

judge a lso fa iled to put a ny questions to c lea r up the se issues.

Que stions in this reg ard we re releva nt to esta blish the p ow er of the b lows as

we ll as how q uick in suc c ession the b low s we re a c tua lly struck.

SECTION D

THE EFFECT OF THE MISDIRECTIONS ON THE FACTS IN ISSUE

The tria l Court misd irec ted itself in material respec ts and it is the refo re justified to

reassess the evidence in view thereof that the said misdirections impacts on the

findings of fac t mad e b y the trial Court and the c onc lusion o f innoc enc e a rrived

at by that Co urt.1

1 R v Dhlum ayo and An, 1948(2) SA 677 at 705 – 706;

S v Tsho ko, 1988(1) SA 139(a ) a t 142 F – J.



27

In the result I arrive at the following conclusions as to the correct findings relating

to the c red ibility of the witnesses and the fac ts in issue:

1. The trial Court erred in finding tha t it had “ no rea son to d isbelieve

the version of the accused” and to accept his evidence in its

totality, in view of it being contradicted in important respects by the

testimony of his brother Junius and the mother of the deceased

whom the Court had a lso found to ha ve be en c red ible.

2. The evidenc e o f the a c c used that his mo ther had sent him to the

dec ea sed to a sk for mo ney to take his mo ther to hosp ita l, and in the

alternative, to ask the deceased to take the accused’s mother to

hospital should have been rejected in the light thereof that it was

contradicted by both Junius and Kayoo, who were correctly found

by the Court to have b een cred ible witnesses. In fac t, the evidence

of Junius had to be accepted that after the accused had left, their

mother was anxious about the whereabouts of the accused and

entrea ted Junius to find him and w hen Junius found the a c c used , he

rep ea ted ly entrea ted him to return and not to follow the de c ea sed .

The dec ea sed how eve r, igno red these req uests until a fter he ha d

be ate n the d ec ea sed and the d ec ea sed wa s lying p rostrate, injured

and helpless on the g round .

3. When the ac cused followed the de c ea sed he wa s ang ry, be c ause

his mother had been beaten by the deceased and was determined



28

to c onfront the d ec ea sed and at least enquire why he had bea ten

his mother.

It wa s a natural and rea sonable rea c tion for him to have be en a ngry

and wa nting to c onfront the ma n who had bea ten his mother.

4. When the ac c used found Nghide ngwa , he asked him why he had

bea ten his mo ther.

5. The acc used hit the dec ea sed at lea st two blows with a relatively

heavy fence pole on the chest causing the fracture of the

breastbone.

6. The fence po le wa s a formidable and da nge rous wea po n if wielde d

to strike a person.

7. It wo uld have been ob vious to any rea sona b le person tha t to strike

an elderly person, estimated at about 80 years with this fence pole

on the c hest would c ause serious injury and even dea th.

8. The dec ea sed d id not have a kierie in his hands, when first

c onfronted by the ac c used ; alternatively, even if he ha d , it was not

used to threa ten the ac c used in any manner. The ac c used did not

hit the deceased to dislodge a knobkierie from the hand of the

dec eased.



29

9. After the ac c used had first c onfronted the de c ea sed and asked

“why the deceased had beaten his mother”, there was no

c onfronta tion forcing him to retrea t and he d id no t retrea t. But even

if he “ran away”, the words used probably by the interpreter, that

was probably a manoeuvre to get in front of the deceased; at any

event it was clearly only a movement over a short distance, the

length of the inside of the Court wherein the trial took place and

could have lasted only for a very short period, probably counting in

minutes.

Whatever the nature of this particular movement, the accused

again approached the deceased immediately afterwards as

testified by him and c orrob orated b y his brother Junius. The purpose

could only have been to continue the confrontation with the

dec ea sed . Even if the ac c used ha d in fac t “ run awa y” or moved

aw ay to the front o f the d ec ea sed , there w as no sugg estion tha t he,

as a young man, was prevented in any way from continuing the

“running away” or “moving away” movement or that his life or limb

wa s endang ered in any wa y if he continued the said movem ent.

10. The dec ea sed fell dow n on the ground afte r being hit by the

ac c used and the ac c used wa s still at the sc ene w hen the d ec ea sed

wa s a lrea dy lying on the ground. At one sta ge , he wa s even holding

the deceased whilst the deceased was lying on the ground as

testified by Kayoo.



30

11. The evidenc e of ac c used in re-examinat ion by his c ounsel tha t

Nghidengwa had not only pulled out a knife from his waist, but had

lifted the knife to shoulde r height a nd had at tempte d to stab him, is

rejecte d a s an a fterthought a nd a de libe rate fab rication.

12. Howe ver, it must be ac cep ted in favour of the ac c used as

reasonably possible, in view of the fact that the accused is the only

witness on these points and his evidence in this regard cannot be

rejec ted as ob viously false, that: Nghideng wa pulled out the knife

when the ac c used ad vanc ed on him a nd Nghideng wa more or less

at the sam e time took a step or two towards the ac c used be fore the

ac cused struck him w ith the fence p ole.

This ac tion b y the d ec ea sed did no t c onstitute a n attac k on the

accused and is, objectively speaking, consistent with a preparatory

de fensive step ag ainst a n a ntic ipa ted ag gression b y the ac c used .

This notw ithsta nd ing, it is a lso rea sona b ly po ssible tha t the ac cused

may have interpreted this action by Nghidengwa as a preparatory

step in an imminent a ttac k on him.

SECTION D:

THE LAW RELATING SELF-DEFENCE:



31

Both parties referred to the approach outlined in the full bench decision of the

Namib ian High Court in Sta te v Nafta li2 as we ll as to som e further autho rities.

None of c ounsel argued that any of the d ic ta in Naftali wa s incorrec t a nd there is

no reason to ta ke a d ifferent view in this c ase. The guide lines set out in tha t

dec ision a re the follow ing:

“ Self-defenc e is mo re c orrec tly refe rred to a s priva te defenc e. The

req uirements of p riva te d efenc e c an be summ arized as follow s:

(a ) The a ttac k: To g ive rise to a situat ion wa rranting ac tion

in defence there must be an unlawful attack upon a

leg al interest which ha d c ommenc ed or was imminent.

(b ) The defenc e must be d irec ted ag ainst the a ttac ker and

necessary to avert the attack and the means used must

be nec essary in the circ umsta nc es. See : Burche l and

Hunt South Afric an Crimina l Law a nd Proc ed ure, vo l I 2nd

ed a t 323 – 9.

When the defence of self-defence is raised or apparent, the

enq uiry is ac tua lly twofo ld. The first leg o f the enq uiry is

whether the conditions and/or requirements of self-defence

have been met, which includes the question, whether the

bound s of self-defenc e were exce ed ed . The test here is

ob jec tive but the onus is on the Sta te to p rove b eyond

reasonable doubt that the conditions or requirements for self-

defence did not exist or that the bounds of self-defence have

been exceed ed.

When the test of reasonableness and the conduct of thehypothetical reasonable man is applied, the Court must put

itself in the po sition of the ac c used a t the time of the a tta c k. If

the Sta te d oes not d isc harge this onus, that is not the end of

the matter and the second leg of the enquiry must be

proc eeded with. The sec ond leg o f the enquiry is then whe ther

the State has proved be yond reasonable do ubt tha t the

accused did not genuinely believe that he was acting in self-

defence and that he was not exceeding the bounds of self-

defenc e. Here the test is purely subjec tive and the

reasonableness or otherwise of such belief, whether or not it is

based on o r amo unts to a mistake of fac t or law o r bo th, is onlyrelevant as one of the factors in the determination whether or

not the ac cused held the aforesa id genuine belief. (See

2 NR 1992 at 299



32

Burc hell and Hunt (op c it at 164 – 81 and 330 – 2); S v De Blom,

1977 (3) SA 513 (A).)

It seems that the learned authors of Criminal Law and

Procedure (sup ra ) are correct when they say in a footnote at332 that the dictum of Sc hreine r ACJ in R v Nd ara 1955 (4) SA

182(A) at 185 is both obiter and incorrec t in the light of S v De

Blom , supra , in so far as Sc hreiner sta ted tha t ‘ the acc used ’s

belief must be rea sona b le’ .

If the Sta te d isc ha rges the onus to prove beyond reasonable

doubt that the accused held no such genuine belief, then the

ac c used m ust be c onvic ted o f the cha rge of murde r. If the

sa id onus is not discharged, then the accused cannot be

convicted of murder requiring mens rea in the form of dolus ,

but c an b e c onvic ted of a c rime no t req uiring dolus but merelyculpa , suc h as c ulpab le hom ic ide.

Culpa ble homic ide will be a c omp etent verdict w here e g the

ac c used , although he genuinely be lieved that he a c ted in self-

defence and within the bounds of self-defence, was not,

objectively speaking, acting reasonably in holding the

a foresa id be lief. See S v De Blom 1977(3) SA 513(A); South

African Criminal Law and Procedure (supra at 180); S v Ntuli

1975(1) SA 429(A) a t 435H – 438A: S v Ngomane 1979(3) SA

859(A) at 863A – 865C.”

There can be no d iffic ulty in unde rstand ing and ap plying the trad itiona l app roa ch

reg ard ing the test fo r justifiab le p riva te defence, i.e. what w as referred to in Sta te

v Naftali, supra , as the first leg of the e nquiry. The sec ond leg , dea ling with the

subjective element of mens rea and knowledge and/or appreciation of the

unlawfulness of the act on the side of the accused became more pronounced

since the dec isions in Sta te v Ntuli,3 and S v De Blom 4.

It is help ful to refe r to the com ment of Snyman in Criminal Law5 where the lea rned

autho r sta tes:

3 1975(1) SA 429(A)4 1977(3) SA 513(A)5 Criminal Law, 2nd ed , 107 see a lso J M Burchell, SA Crimina l Law a nd Proced ure, General

Princ iples of C rimina l Law, 3rd ed unde r hea ding “ Putative or supp osed de fence” 265/266.



33

“ The test to b e a pp lied is now as follow s: If X (the party who w as

originally attacked) is aware of the fact that his conduct is unlawful

(because it exceeds the bounds of private defence) and that it will

result in Y’s death, or if he subjectively foresees this possibility and

reconciles himself to it, he acts with dolus (intention ac co mp anied b yawa rene ss of un lawfu lness) and is guilty o f murder. If intent ion to kill as

explained in the previous sentence is absent, X can nevertheless still

be guilty of culpable homicide if he ought reasonably to have

foreseen that he might exceed the bounds of private defence and

tha t he m ight kill the a gg ressor. He was then neglige nt in respec t of

the d ea th. If, subjec tively, he d id not fo resee the p ossibility of d ea th

and it c an a lso no t be said tha t he o ught reasonably to have foreseen

it, both intention a nd negligence in respec t of d ea th are absent a nd

he is not g uilty of e ither murder or culpa b le ho micide .”

State c ounsel ap pe aring for the a pp ellant argued inter alia that even if the

accused had faced an imminent attack, he should have fled rather than kill the

dec eased.

It is therefore apposite to make a few comments on the relevant principle in our

law.

It is trite law tha t a person ne ed not flee , if in doing so it would b e d ange rous or it

would expo se him to a “ stab in the ba c k”.6

However, there are decisions of our Courts indicating that where it is not

dangerous to flee, the person attacked should flee, rather than to kill the attacker

in self-de fence. But as Snyma n po ints out , this has not been unam biguously

stated.7

6 Criminal Law, IBID, p 102 and the decisions there referred to.JM Burchell, SA Criminal Law a nd Proc ed ure, vol I, 3rd ed , 77.

7 Crimina l Law, IBID, p 102.

The dec isions in: Zikala la, 1953(2) SA 568(A) a t 571/572

Patel, 1959(3) SA 121(A) at 123F.



34

I am not aware of any authoritative decision by Namibian Courts, certainly not

since our Courts have be c ome independent a t Namibia Indepe ndence in 1990.

Snyman in his d isc ussion o f the issue , po ints out tha t in the leg a l system of several

western demo c rac ies, suc h as e.g. in England and G ermany, a p erson a tta c ked is

not required to flee. In the USA the Mo del Pena l Code p rovides tha t a p erson

must rather flee than kill a person in self-defence, unless he is threatened in his

dwelling or place of employment or is a public officer whose duty is to maintain

justice.8

It c an a lso b e a rgue d tha t sinc e the dec ision o f the Appella te Division o f the South

Afric an Sup rem e Court, in the Va n Wyk dec ision, there is no long er any room fo r

perpetuating the principle that the person who is attacked or where persons are

atta c ked w hose life a nd limb he/ she ha s a duty to protec t, must rather flee than

kill the a tta c ker, ap pea rs to have lost muc h o f its va lidity.

In these times when violent crimes such as murder, rape and robbery have

increased ominously and where the police forces and the criminal justice system

are finding it increasingly difficult to protect the victims effectively, the potential

murderers, rapists and rob bers will be further enc ourag ed if they know tha t the law

expec ts the vic tim to flee rather than to use violenc e to rep el the a gg ressor.

The rea lity is tha t the need for self-defenc e and/ or p riva te d efenc e, has be c ome

more pronounced and urgent than ever before and unnecessary obstacles

should not be placed in the way of any person to protect his or her life, physical

8 Criminal Law, IBID 102- 103

Van Wyk, 1967(1) 488(A)



35

integrity, dignity or property and those of third persons where there is a duty to

protec t a lso suc h persons.

Of course the right to adequate and effective self-defence and/or private

defe nc e cannot be b ound less and limitless. But the existing princip les and rules

are adequate to ensure order and justice, without being burdened with a

req uirem ent tha t vict ims unlawfully a tta c ked, must rathe r flee than kill, even where

their lives and/or bodily integrity or property or those of third persons for whom

they a re responsible, a re gravely end angered . Ob viously no person ma y kill a

thief when o nly a p etty theft is involved .

The q uestion a rises whether or not Art. 6 of the Namibian Constitution ha s

c hange d the p rinc ip les relating to killing in priva te d efenc e. Art. 6 provides:

“ The right to life shall be respec ted and p rotec ted . No law ma y presc ribe

dea th as a c om petent sentenc e. No Court or Tribuna l sha ll have the

po wer to imp ose a sentenc e of dea th upon any person. No exec utions

sha ll ta ke plac e in Namib ia.”(My em phasis ad ded .)

In my view the a foresa id p rovision doe s not a ffec t the existing p rincip les. It is true

tha t the right to life must be respe c ted and p rote c ted . This inc lude s the right to

life of the v ictim o f an aggressor. The vic tim’ s right must a lso be respec ted a nd

prote c ted . One w ay for the victim to p rote c t his/ her life or tha t of othe rs, is to a c t

in self-de fenc e or p riva te d efenc e. The existing p rincip les which the Courts app ly

set o ut herein, are in my view ad eq uate to respe c t a nd protec t a lso the right to

life o f the a gg ressor and no c hang e to the existing approa c h is req uired .



36

In any event, it seems to me that the contention that the person attacked must

rather flee than kill the attacker, would not apply to the defender who violently

resists, but doe s not intend to kill but on ly to injure.

Even though it is not necessary to decide this issue in all its manifestations in this

judgment, it is at any event safe to say that a person would be entitled to defend

him/ herself, if such p erson o r those that he/ she is entitled to defend , are a tta cked

and fa ced with serious threa t to life and / or limb in his/ her own d we lling o r plac e o f

wo rk or if suc h person is a pub lic o ffice r whose d uty it is to p rotec t soc iety.

SECTION E

CONCLUSION

In my respe c tful view the a pp ea l must succ eed to the following extent:

1. The Sta te d id no t prove beyond reasona ble do ubt tha t the acc used had

the d irec t intent to kill the d ec ea sed . What c ount in his favo ur is tha t he d id

not hit the accused on the head, which would have appeared to the

ordinary rea sonable memb er of the pub lic and to the ac c used , as a more

vulnerable part of the body, if he had wished to kill the deceased.

Furthermore, he desisted from continuing the attack once the deceased

wa s lying he lp less on the ground . In add ition, the a c cused testified tha t he

did not “ intend” to kill the dec ea sed .

The m ore d iffic ult q uestion howeve r, is whe ther or not he had the leg a l

intention to kill, by virtue of the principle of dolus eventualis , i.e. that he

foresaw the rea sona b le p ossib ility tha t Nghide ngw a c ould d ie a s a result o f



37

his blows and proceeded, reckless as to the consequences and/or that he

rec onc iled himself with that possibility. The ac c used w as unfortuna te ly

never cross-examined on the issue of whether or not he foresaw the

rea sona b le p ossib ility tha t Nghideng wa c ould d ie.

In the circumstances herein set out, I cannot find that the accused had the

direct intention to kill, nor can I find that he foresaw the reasonable

possibility that the deceased may die as a result of the assault and

nevertheless proceeded, reckless as to the consequences or that the

accused proceeded, after reconciling him with the reasonable possibility

that the d ec ea sed m ay die as a result. Conseq uently the ac cused c anno t

be found guilty of m urde r.

However, the accused, objectively speaking as a reasonable person in his

position, should have foreseen that Nghidengwa could die and was thus

negligent in not foreseeing that Nghidengwa may die as a result of the

assault a nd ne vertheless proc eeded with the a ssault. The a c c used wo uld

thus be guilty of culpable homicide, unless the killing was done in justifiable

private d efence.

In view of the p lea of self-defenc e, the enq uiry does not e nd he re.

The Court must now e nga ge in the first a nd sec ond leg s of the enq uiry as

set out in Sta te v Nafta li, supra , in reg ard to the issue o f self-de fenc e.

On the first leg, it must be found that the accused did not act in justifiable

self-defenc e or private d efenc e. Although he need not have fled , if he



38

was in fact attacked and in danger of losing his life or being seriously

injured - this is a case where the accused persistently followed

Nghidengwa, notwithstanding the efforts of his brother to persuade him to

turn bac k. Even when, on his ow n sto ry, the re was no further legitima te

reason to continue following Nghidengwa after his original business had

be en completed and he had seen Nghide ngwa’ s negative and a gg ressive

response, he co ntinued to c onfront Nghideng wa . If his life and limb wa s

placed in danger, it was of his own making because he persisted in

confronting Nghidengwa – and Nghidengwa was entitled to take steps to

defend himself aga inst his muc h younge r and stronger op ponent. Even if

Nghideng wa pulled out a knife, as a p rep ara to ry step to d efend himself, he

would ha ve been entitled to d o so.

I will assume for the purposes of this judgment that the accused was

entitled to take some steps – even to use a moderate degree of force, to

d isc ourage Nghideng wa from at tac king him. But even on this assump tion,

it must b e held tha t the State ha d at lea st p roved that the ac c used

excee de d the b ounds of self-defenc e.

The sec ond leg of the enq uiry is perhaps the m ore d iffic ult one b ec ause it

involves a sub jec tive test.

The ac c used wa s ada ma nt that he ac ted in self-de fence. When

c onsidering the fa c ts ana lysed a foresaid , it c annot b e sa id tha t the Sta te

had proved beyond reasonable doubt that the accused did not believe

that he wa s entitled to hit Nghidengwa as he d id.



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But tha t d oes not finally co nc lude the issue o f guilt or innoc enc e. Here we

return to an objective test being – that if the accused did not act

reasonably or was negligent in believing that he was justified in hitting

Nghideng wa as he d id , then he w ill still be g uilty of c ulpab le homic ide.

In my respec tful view , even if it is assumed in favour of the ac cused tha t he

believed that he was entitled to act as he did, such belief was

unrea sona b le a nd he wa s a t lea st neg ligent in so b elieving. Conseq uently

he wa s guilty of the c rime of c ulpa ble homicide.

In my view this Court should not now c onsider sente nc e, b ut rathe r refer the

matter back to the trial Court for that Court to hear evidence and

argument o n sentenc e a nd then impo se an ap propriate sentenc e. It will of

course be necessary to arraign the accused before a different judge

because the original trial judge is no longer a member of the Bench of the

High Co urt.

In my respec tful view the fo llow ing o rder should b e made:

1. The appea l succ eeds;

2. The follow ing order is ma de in substitution o f the order of the t rial

court:

2.1 The a c c used is found guilty of the c rime of c ulpab le

homicide;



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2.2 The m atte r is referred bac k to the High Court fo r

arraignment before a judge, other than the original

trial judge, to consider and impose sentence after

hearing relevant evidence in regard to sentence, if

any, and the argument in regard to an appropriate

sentence.

_______________________

O’LINN, A.J.A.

agree.

________________________

STRYDOM, C.J.

I agree.

________________________

CHOMBA, A.J.A.

/mv



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COUNSEL ON BEHALF OF THE APPELLANT: Ms. E.C. HARMSE

INSTRUCTED BY: The Prosec utor-Gene ral

COUNSEL ON BEHALF OF THE RESPONDENT: Mr. P.U. KAUTA(Amicus Curiae)

Documents

Matheus v The State